The trial court initially dismissed the case after the insured refused to postpone a medical procedure to treat a herniated disc in his spine before the insurer could perform its medical examination. Southern-Owners Ins. Co., argued that because it was unable to examine the plaintiff before his procedure it was prejudiced because it could no longer determine the extent of the claimed injuries.

The court of appeal disagreed. First, the insurer was not prejudiced because the plaintiff did not even have an obligation to notify the insurer of the upcoming procedure. He simply could have gone through with the procedure. Second, for its own part the insurer violated some of the trial court’s orders as well. Southern-Owners only provided one date before the operation where the plaintiff could be examined where it had been ordered to provide two dates and the insurer then cancelled a date where the plaintiff had agreed to be examined.

The court of appeal finally noted that the insurer was not in any worse of a position had the plaintiff simply not notified it of the procedure (again, something he was under no obligation to do) and could still use the pre-operation medical information available in its defense of the case.

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